Federal courts have made it maddeningly difficult for incarcerated people to challenge cruel and inhumane conditions in prisons and jails under the U.S. Constitution. But a decision by an Oregon appellate court condemning Oregon prisons’ Covid-19 response illustrates the unique opportunity some state constitutions — in particular, those that forbid state officials from treating people in their custody with “unnecessary rigor” — present for protecting the rights of incarcerated people.
Five state constitutions guarantee that “no person arrested or confined in jail shall be treated with unnecessary rigor”: Oregon, Utah, Indiana, Tennessee, and Wyoming.
Courts in Oregon and Utah have the most developed case law interpreting their “unnecessary rigor” provisions. They agree on three crucial points. Most importantly, they concur that the clauses offer more protection than comparable federal provisions. They also agree that despite the specific mention of “jail,” the clauses protect people pre- and post-conviction. Finally, they agree that the clauses govern conditions of confinement as opposed to proportionality of sentences.
This is heartening for those of us who care about the rights of the most marginalized, particularly in light of the weak federal protections for incarcerated people. For example, to bring a successful claim under the Eighth Amendment, the Supreme Court has ruled that incarcerated plaintiffs must prove that the correctional officials who hurt them had the subjective intent to do so. In other words, they must divine what was in the minds of their abusers.
As a result of antiplaintiff federal standards, the U.S. Constitution allows abhorrent conditions to flourish behind bars. Strapped naked to a table for days with no food? No Eighth Amendment violation. Three years in an elevator-sized room smeared with feces, with little ventilation, excessive heat, and no access whatsoever to exercise? Not cruel and unusual. Pepper sprayed by correctional officers, who then watched while the incarcerated man gouged out his eye? Perfectly constitutional.
Against this bleak federal prison litigation landscape, state constitutions offer a glimmer of hope — and “unnecessary rigor” clauses glow particularly brightly.
Take last month’s decision in Oregon, Lawson v. Cain. There, a 62-year-old incarcerated man with chronic obstructive pulmonary disease alleged that his prison did not take adequate measures to protect him from Covid-19. Specifically, he maintained that the prison’s inconsistent enforcement of masking requirements subjected him and other medically vulnerable people to “unnecessary rigor” by creating “an unjustifiable risk of a serious health hazard.”
The court agreed. Its ruling reiterated that plaintiffs suing under the clause need only show that they have been subjected to “unnecessarily harmful or dangerous treatment,” not that the defendant acted intentionally or was “deliberately indifferent” to the potential for serious harm. In other words, the inquiry is “purely objective.”
Oregon’s unnecessary rigor clause extends beyond federal protection in other ways, too. Consider the Oregon Supreme Court’s 1981 decision in Sterling v. Cupp, which held that pat-down searches of incarcerated men by female prison officers violated the clause because the practice “cannot be justified by necessity.” Scholars have suggested that Sterling “implicitly recognized the legitimacy of psychological pain” by reasoning that “the imposition of a needless indignity” violated the unnecessary rigor clause.
That recognition stands in contrast to federal law, where the Prison Litigation Reform Act bars incarcerated plaintiffs from pursuing compensatory damages for purely psychological or emotional harm. Oregon’s unnecessary rigor clause therefore offers an avenue to redress the very real harms that incarcerated people can experience even in the absence of physical injury — a mechanism that federal law lacks.
Utah courts have similarly interpreted their state’s identical provision more broadly than federal protections. In Dexter v. Bosko, the Utah Supreme Court held that officials treated a man in their custody with unnecessary rigor when their refusal to fasten his seatbelt during transport caused him to become paralyzed in a subsequent car crash. The court indicated that the provision prohibited treatment that the Eighth Amendment would permit. For example, while requiring strict silence during given hours may not be cruel and unusual under the Eighth Amendment, it “may impose unnecessary rigor.”
Indiana, Tennessee, and Wyoming
Courts in Tennessee and Wyoming have never interpreted their unnecessary rigor clauses. Indiana’s case law on “unnecessary rigor,” meanwhile, is less developed than Oregon and Utah’s — and decidedly less protective.
Aside from two cases rejecting arguments that delaying executions constitutes unnecessary rigor, Indiana’s supreme court has not considered the meaning of the clause in almost 25 years. The last time it did, it declared that the clause “is not a catch-all provision applicable to every adverse condition accompanying confinement. Rather, it serves to prohibit extreme instances of mistreatment and abuse.” In other words, Indiana’s unnecessary rigor clause has, in practice, only barred treatment that would likely also violate the Eighth Amendment.
There is some reason for optimism, however tempered. In 1860, the Indiana Supreme Court noted that solitary confinement would constitute unnecessary rigor, writing that “humanity indeed forbids, as unnecessary rigor, that his confinement should be absolutely solitary, or that all his natural and civil rights should be temporarily annihilated.” Given that no federal court has declared solitary confinement categorically unconstitutional under the U.S. Constitution, this statement would seem to extend Indiana’s clause beyond its federal counterpart. But Indiana courts have shown little appetite to broaden protections any further over the last 163 years.
If courts in Indiana, Tennessee, and Wyoming consider the meaning of unnecessary rigor, advocates should draw judges’ attention to Oregon and Utah. After all, state courts regularly look across state lines to borrow reasoning they find persuasive from their colleagues across the country. So while Oregon and Utah’s “unnecessary rigor” jurisprudence protects only people incarcerated in those states, it may ultimately improve the lives of people outside their borders.
Kathrina Szymborski Wolfkot is an appellate attorney at the MacArthur Justice Center, where she challenges poor medical care, violence, and inhumane conditions in jails and prisons. Her practice focuses on state courts and state constitutions.
The views expressed are the author’s own and not necessarily those of the Brennan Center.